Wednesday, March 23, 2005

A Duty To Enforce?

WASHINGTON — The Supreme Court gave a skeptical hearing today to a woman's claim that police can be sued if they fail to enforce a protective order designed to shield her and her children from her estranged husband.Six years ago, Jessica Gonzales of Castle Rock, Colo. lost her three daughters when her estranged husband abducted them from her frontyard and later shot and killed them in his truck. He was killed when he shot at police.

Three times during the evening of the abduction, the mother had reported to the Castle Rock police that her girls were missing. She also had obtained a protective order during her divorce proceeding that required her husband to stay away from her house. The order also said police "shall" use all reasonable means to protect her and her children.The officer who took her calls did nothing, except tell her to call back in two hours if the girls did not reappear.The Supreme Court took up her case to decide whether victims of such non-action by the police can sue and win money damages.For most of the justices, the answer appeared to be no.

Justice Stephen G. Breyer said he feared that a ruling for Gonzales would open the door to multiple lawsuits against the police and other government agencies for failing to do their duty."The reason is they're too busy," he said. Plenty of laws impose a duty on the government, he noted, "but that doesn't mean the victim has a right to enforce it" by suing, he added.Justice Sandra Day O'Connor said she too was worried about allowing persons to sue the police for not acting. Usually, the police are sued for taking actions, such as using excessive force."This is such a new requirement you are seeking. It would be a major step," O'Connor said.

Others pointed out that the police usually have wide discretion to decide which cases to pursue."This is very much at odds with the normal discretion" given the police, Justice David Souter commented.The case of Castle Rock vs. Gonzales has attracted broad attention. Women's rights groups and activists in the fight against domestic violence say protective orders are meaningless if police have no duty to act. And without the penalty of a lawsuit, they may choose to ignore these court orders, they said.Gonzales' lawyer said the Castle Rock Police Department often did nothing to enforce protective orders."They had a pattern of ignoring these complaints," attorney Brian Reichel of Broomfield, Colo. told the court. "She assumed she would be protected by the state. It means something only if the police were willing to enforce it."

Police and municipal groups joined the case on the side of Castle Rock, as did Bush administration lawyers. They said federal courts should not allow lawsuits based on complaints that a government agency did not respond."What happened here is undeniably tragic," said law professor John Eastman, representing the town of Castle Rock. But, he said, a protective order does not create a constitutional "entitlement" to a speedy response from the police.Eastman, who teaches at the Chapman University Law School in Orange, Calif., said the state of Colorado did not intend to create any such entitlement, and therefore, officials did not violate the Constitution when they failed to respond to Gonzales' calls.

Justice Antonin Scalia said he agreed, calling the claim "utterly zany." Only Justices Ruth Bader Ginsburg and John Paul Stevens sounded as though they leaned in favor of Gonzales.

I find this a very fascinating ruling, and a little confusing. It seems to me that the Supreme Court has found that police do not have a compelling legal duty to enforce a court order or respond to one being violated. That's an interesting concept.

While I sympathize with Ms. Gonzales, I can also sympathize with the police. It's a very busy job and many custody disputes are seen as relatively unimportant compared to other crimes. You haven't seen petty immature bickering until you've seen two divorced parents with joint custody. I'm sure the cops thought this was just another silly bicker-fest and opted to handle more pressing issues. Unfortunately, the man was a murderer.

My heart goes out to Ms. Gonzales. She lost her kids to a horrible little man. But I can't abide the opening of a door to sue cops when they don't respond to certain calls in a timely manner. It would make police work almost impossible to open them up to that kind of litigation. Thankfully the Supremes saw it the same way.